The Senate Judiciary Committee held its hearing on Supreme Court ethics Tuesday, the hearing that Chief Justice John Roberts refused to attend, blowing off the ethics problem that has developed at the court on his watch. He declined the invitation on behalf of all nine justices, each of whom signed on to a joint statement last week declaring that everything is absolutely fine on the court, nothing corrupt to be seen. That in itself was enough reason for the hearing to proceed this week; it’s clear that this court is not going to police itself.
To hear Republicans on the committee and the witness they invited talk, the court isn’t just above reproach—it’s untouchable. They were sticking to Roberts’ reason for his refusal to testify, when he asserted that “is exceedingly rare, as one might expect in light of separation of powers concerns and the importance of preserving judicial independence.”
But it is not exceedingly rare, Chair Dick Durbin pointed out in his opening statement. “The reality is that sitting justices have testified at 92 Congressional hearings since 1960.” He was troubled, he added, by Roberts’ claim. “In fact,” he said, “answering legitimate questions from the people’s elected representatives is one of the checks and balances that helps preserve the separation of powers.”
That didn’t stop Louisiana Republican Sen. John Kennedy from railing about it. He declared that the phrase means that Congress has no part in overseeing ethics (or lack thereof) on the Supreme Court. One prominent conservative, former federal judge Michael Luttig, disagreed. Before the hearing, he provided a statement to the committee but did not testify in person.
Congress “indisputably has the power under the Constitution” to “enact laws prescribing the ethical standards applicable to the nonjudicial conduct and activities of the Supreme Court of the United States,” Luttig wrote. He nonetheless encouraged the court to police itself, writing, “there should never come the day when the Congress of the United States is obligated to enact laws,” telling the court that it must “prescribe such standards for itself.” If “that day were ever to come,” he added, “it would hardly be a constitutional crisis or anything of the sort.”
Amanda Frost, a University of Virginia School of Law professor, agreed in her testimony. That the separation of powers argument means that Congress cannot impose an ethics requirement on the court “confuses” her, she said, adding, “Checks and balances is equally important.” The constitution gives Congress the responsibility “to establish the Supreme Court,” Frost continued. “It’s not just permitted, it’s required.”
Republicans soon decided that that wasn’t such a fun argument, so they switched tactics, calling the entire fact that questions about the ethics of the justices have been raised “partisan media attacks.”
“Today’s hearing is an excuse to sling more mud at an institution that some—not all—some Democrats don’t like because they can’t control it 100% of the time,” Kennedy said. “Until they get the outcome they want in every case I fear they are going to continue to slander it in an effort to take control of it. And I pray to God I am wrong.”
They were just getting warmed up. Soon enough, it was all about how this was an attack on Clarence Thomas specifically, with the implication that it was definitely a racist attack from Democrats, with Texas Republicans taking the lead. Sen. John Cornyn played the whole of Thomas’ infamous “high-tech lynching” speech from his confirmation hearing in 1992, Thomas’ response to Anita Hill’s allegations that he sexually harassed her.
Ted Cruz spent the whole of his remarks on racist Democrats, bringing posters along to make the accusation. “The left despises Clarence Thomas because he is a conservative African American,” Cruz yelled.
No Republicans were swayed by arguments that there’s a big ethics problem with Supreme Court conservatives, and that they should possibly consider getting out ahead of it to save the institution and their own reputations.
Thus far, just Republican Sen. Lisa Murkowski of Alaska has indicated that maybe there’s an issue with the court’s ethics that Congress should address. That’s not going to fly with the rest of the Republicans. They like the fact that they have a set of Supreme Court justices so willing to make their dark money donors happy.
The past week seems to have packed in a month’s worth of news. Markos and Kerry tackle it all, from Joe Biden’s big announcement to Tucker Carlson’s early retirement from Fox News.